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“Ban the Box” Movement Gains Steam, Leaves Questions for Employers

Written by Amanda Maher

Through its TechHire initiative, the Obama Administration has pledged $100 million for training programs aimed at helping those underrepresented in the tech industry access the growing number of well-paying positions that continue to go unfilled. Earlier this month, the Administration announced it was ramping up funding for TechHire initiatives in Memphis, New Orleans, Newark, New Haven and Washington, D.C. These five cities are all expanding their TechHire efforts to include training and support for those who have criminal records.

The announcement gives steam to the “Ban the Box” movement, an international campaign to have employers remove the box on employment applications that asks potential candidates whether they have a criminal record. Often, checking this box automatically disqualifies a person from employment before his or her actual experience and qualifications are reviewed. Some have called the practice “pre-hire employment discrimination.”

Convicted felons are three times less likely to receive callbacks than applicants who had otherwise identical qualifications but who did not have a criminal record, a National Institute of Justice study found. A study in Milwaukee found that it was nearly impossible for black ex-offenders to find work without a face-to-face interview with an employer.

Ban the Box advocates urge employers to evaluate candidates on the basis of their merits. If a person is otherwise qualified and moves on to the next stage of hiring, a background check will reveal a conviction. In the period between initial application and the background check, the applicant will have the opportunity to interview for the position and can explain the circumstances of the conviction in advance if he or she chooses.

The rationale is that ex-offenders who are employed are less likely to re-offend. Indeed, research has shown that employment is a strong determinant of recidivism rates.

“I’ve seen how a job makes all the difference,” said Derreck B. Johnson, founder and president of Chicken and Waffles in Oakland, CA. “When I give someone a chance and he becomes my best employee, I know that I’m doing right by my community.”

And some employers have found that hiring formerly incarcerated people makes business sense. “There’s plenty of people I can hire that don’t care if they work for me or the guy down the street,” explained Mark Peters, CEO of Butterball Farms, a supplier of specialty butters, who routinely hires ex-offenders. “So if I help someone else be successful, they’re a lot more interested in helping me be successful.”

Calls to “Ban the Box” have persisted since at least the 1990s but support has picked up in recent years. Hawaii was the first state to implement “fair chance” laws in 1998. Eighteen others have followed suit since. Today, more than 100 cities and counties have enacted similar fair chance legislation. Legislation varies from place to place: Connecticut, for example, bans the box on state employment applications only, while in Massachusetts it is banned for all private sector employers. In Colorado, employers can only conduct a background check if an applicant is considered to be a finalist.

On the same day President Obama announced the increased support for TechHire programs aimed at training ex-convicts, he signed an executive order banning the box from most federal job applications.

Banning the box is also important from a social equity perspective. A growing body of literature finds that minorities are more likely to be arrested and convicted than whites, and once convicted they are more likely to face stiff sentences. This issue particularly affects inner city communities where, nationally, Hispanic and Latino (37 percent) and African American (31 percent) residents far outweigh those who are white (24 percent).

For businesses, though, banning the box is still murky territory. Legislation is evolving quickly and regulations vary between states and municipalities. With no standard application procedure, and no standardized assessment that employers can rely on, companies have expressed fear of mistakenly non-complying—thereby opening themselves up to discrimination lawsuits. Small businesses, which are often the majority of inner city employers, may be most at-risk given that few have separate HR departments or personnel to stay abreast of these changes on a regular basis.

Putting more residents to work, particularly inner city residents with barriers to employment, will strengthen inner city economies. At the same time, standardizing procedures will especially benefit small business owners who may have difficulty complying with the administrative requirements of frequently shifting employment laws.